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IU professor: Legal education in the US needs to change

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Legal education in the United States needs to change.

Indiana University Maurer School of Law Professor William Henderson makes that statement in the first line of his recently published research paper, “A Blueprint for Change,” which also offers a plan to transform legal education to better fit the changing legal marketplace.

Henderson argues that the legal market is no different than any other market in that it is subject to the laws of supply and demand. Right now, supply is vastly outstripping demand.

blueprint-piechart.gifThe law professor paints a grim picture of the current state of legal employment. For the class of 2011, Henderson notes that nine months after graduation only 55 percent had found full-time, long-term work requiring bar passage. Others found work for which having a law degree was an asset, but for a significant number bar passage and a J.D. offered no advantage (or salary boost). Couple this with increases in student debt – which is now on average approaching six figures for many graduates – and you have the makings of a crisis.

These statistics follow several years of downward trends in the legal job market. Henderson said his own interest in the economic aspects of the legal world began when he was in law school, as he saw many of his classmates making decisions about employment that, he believed, betrayed a lack of understanding of the legal profession as a market.

As a professor, he began exploring the topic more academically in the mid-2000s. For a few years, a significant percentage of entry-level associates were getting very high salaries, while another chunk received much more modest starting salaries.

“I looked at it from kind of a labor market economist perspective and I said, ‘this is a broken market. Markets don’t clear this way,’” he told Indiana Lawyer. “People are either overpaying for some talent or underpaying for others, but this is not stable. I wanted to understand what was driving that difference.”

In his “Blueprint,” Henderson shares not only his analysis of the market, but a plan to begin to address some of the problems with valuation of legal services. His focus is primarily on law schools, but his plan will require cooperation from a variety of legal sectors in order to achieve success.

Law school viability is dependent on three factors, Henderson writes. Schools must have students willing to enroll, then a way to finance student education, and finally a market willing to employ graduates. Of these three, the last is the driving force. “Without jobs for its graduates, any law school enterprise will eventually fail. The students and financiers will wise up and abandon the school and its faculty,” Henderson writes.

While there is still a market for traditional legal services, Henderson argues that the market has been changing. The legal services market is being gradually replaced by those offering legal products and inputs which do not require the same input from “expensive, artisan-trained lawyers.”

He points to research by British lawyer Richard Susskind, who has identified a transition from traditional courtroom representation to commoditized legal services developed in conjunction with technology advances. “These changes are made possible by identifying recursive patterns in legal forms and judicial opinions, which enables the use of process and technology to routinize and scale very cheap and very high quality solutions to the myriad of legal needs,” Henderson writes.

There is growth in this sector, he notes, but much of the growth is happening overseas in places like India. Law schools in the U.S., by and large, have not begun training with these industries in mind.

While more research needs to be done, Henderson said it is important that law schools begin to develop mechanisms to be more responsive to changes in the market. He advocates three steps he believes will help law schools adjust: 1) form consortia with schools, alumni and employers to focus on labor market outcomes; 2) construct a competency-based curriculum that more accurately targets the needs of the legal marketplace; and 3) identify a small percentage of faculty and administrators (he says 12 percent) to spearhead reworking the system.

The idea is to quantify the skills the market is willing to pay for, then figure out how to teach those skills in a way that offers increased value. Henderson acknowledges that this plan is a work-in-progress, and he advocates building feedback loops into the system to allow for continuous evaluation and improvement of curricula.

Brian Tamanaha, professor at Washington University Law School in St. Louis and author of “Failing Law Schools” (2012), read Henderson’s proposal and thought it offers some strong insights and solid ideas for moving forward, although he noted a couple of reservations.

First, he said that identifying and teaching the competencies around which Henderson’s new curricula would be designed is a difficult proposition. “I’m not saying it can’t be done, but I am saying no one knows how to do it,” Tamanaha said.

A related question, though, is figuring out how much employers actually value these competencies. Tamanaha notes that large law firms now make offers before a student has finished the second year of school. He said he believes that it is possible law firms view schools as a sorting mechanism – a student who is smart enough to get in and do well the first year can handle the work. What students actually learn in terms of skills and competencies in school does not seem to play as big a role in hiring as the caliber of the school and the way the student performs in the first year.

Henderson’s theory is that if a school produces students with more competencies necessary for the marketplace, they will be more competitive and the school will benefit in the long run. “For him to be right requires that employers care about these things,” Tamanaha said. And maybe they will – he conceded that there is uncertainty that comes with any change of this magnitude.

Henderson also acknowledges that there will be some significant obstacles to putting a plan like this into place, not the least of which will be convincing traditionally minded faculty that the mode of legal education must shift to meet a changing marketplace.

He said his biggest worry is how well existing schools will rise to meet the challenge. “I can’t tell you how much I worry about that,” he said. “Now is the time when we need decisive leadership that figures out how to balance constituencies and makes hard decisions, and knows how to hold an institution together during rough times.”

Tamanaha agrees. “It is hard to change,” he said, noting that the kinds of competencies Henderson advocates teaching will require a different kind of person to teach them. Schools have for several decades been focusing on hiring scholars and academics who have little experience putting their legal skills to practice.

“If I were to start up a new school today, I wouldn’t hire what we’re hiring now, which is, people from elite law schools who get one-year clerkship and go into teaching,” Tamanaha said. “I would go in the direction of people who are smart and capable but experienced.”

Henderson said a number of law schools and faculty have expressed interest in his proposal. He and others have already taken steps toward forming the type of consortium he advocates, although he declined to name schools or individuals involved. Time will tell how well his proposals work on the ground, he said, but it is better to try something to address the shifting market than to ignore what is happening.

“Lawyers have a hard time believing that, yes, even law changes,” Henderson said. “We think that this is really extraordinary, but it is just part of history. There is nothing exceptional happening here. But it feels traumatic when it’s in your sector.”

Henderson’s paper, published in the Pepperdine Law Review, may be downloaded free of charge at http://ssrn.com/abstract=2202823.•
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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